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three great divisions. The first will embrace a sketch of the charters, constitutional history, and ante-revolutionary jurisprudence of the Colonies. The second will embrace a sketch of the constitutional history of the States during the Revolution, and the rise, progress, decline, and fall of the Confederation. The third will embrace the history of the rise and adoption of the Constitution; and a full exposition of all its provisions, with the reasons, on which they were respectively founded, the objections, by which they were respectively assailed, and such illustrations drawn from contemporaneous documents, and the subsequent operations of the government, as may best enable the reader to estimate for himself the true value of each. In this way (as it is hoped) his judgment as well as his affections will be enlisted on the side of the Constitution, as the truest security of the Union, and the only solid basis, on which to rest the private rights, the public liberties, and the substantial prosperity of the people composing the American Republic.'
Robinson's Virginia Practice. We have had an opportunity of only taking a cursory glance at the first volume of Practice of the Courts of Common Law and Equity in Virginia, by Conway Robinson,' which has been just published. We are glad to see that the author has given a full, elaborate treatise on the subject, instead of a small compendium. The book must be an indispensable part of the library of a lawyer in Virginia, and will be a very useful addition to that of a lawyer in any other State, its utility out of Virginia depending, of course, upon the degree of coincidence in the practice of any other State, with that of Virginia. We intend hereafter to give our readers some account of the contents of this volume. In the mean time we subjoin what the author himself says of his work in his preface.
The practice of the courts of King's bench and common pleas in England may be ascertained by referring to the treatises of Impey, Sellon, Tidd and Archbold; but the lawyer who commences his professional career in Virginia is at a loss to discover in what respects our practice varies from the English. Information of this nature he is under a necessity of seeking from others more experienced than himself.
'Very soon after coming to the bar, it occurred to me that a course of reading which I had resolved on for my own improvement, would furnish such materials as might enable me at a future
day, to treat of the practice in Virginia. All the judicial decisions of this State which have been published, or which exist in manuscript reports to which I could have access, have been carefully perused, and notes taken of such matters as illustrate the practice of our courts.
'Within a few months past, I have arranged systematically such of the notes thus taken, as relate to the practice of the courts of law in civil cases; and this volume is the result of that arrrange
'In the preparation of the volume, I have endeavored to make it such a work as would be acceptable to senior as well as junior members of the profession. Not only is it a digest of the adjudications of our courts upon the subjects embraced by it, but all the statutes relating to each subject, up to the present time, are either inserted or referred to. Resort has also been had to the decisions of the supreme court of the confederacy, and to those of our sister States. From New York especially, whose judicial system bears a strong resemblance to that of Virginia, much useful matter has been obtained. The English cases have been sparingly used, for the obvious reason that to these the English books of practice furnish a ready reference. Yet they too have been drawn upon, when the particular matter discussed has been of general interest here and elsewhere; such, for example, as the statute of limitations.
'Explanations of my own have been sometimes made, where the difference between our practice and the English did not appear by any statute or judicial decision. And where there have been contradictory adjudications or opposing dicta of judges, they have in some instances been commented on, and reasons assigned in favor of that rule which it seemed to me ought to prevail.
With this exposition of the character of the volume, it is placed before the profession.
To complete my original design a second volume must be published hereafter. That will embrace the practice in suits in equity, and as far as practicable, the principles upon which equity exercises jurisdiction. In relation to the period at which the second volume may be expected to appear, I cannot speak with precision. The labor is not very attractive; and professional engagements will necessarily cause a postponement for nearly a twelvemonth. After that lapse of time, the second volume will probably appear, if the reception which this may meet with shall manifest a desire on the part of the profession that the work should be continued.'
MISCELLANY AND INTELLIGENCE.
From the Law Magazine, No. 17, p. 276.
Sketch of the state of Legislation in Germany. The legislative activity in the different states of Germany varies in its direction, according to the varying political relations of those states. all countries where the constitutional principle prevails — in which the people stand upon a higher grade of political cultivation, and are striving more powerfully to confirm and extend their rightsthey look more to England and France, as to those states in which the foundations of greater degrees of liberty are laid, and whose judicial arrangements have more in view the independence of the courts, the protection of civil liberty from all attacks of the government, and the participation of the people in the administration of justice. Accordingly, in Bavaria, Wirtemberg, Baden and Hesse, the dissatisfaction with the existing institutions, is much greater than in other German states, and the general voice is more in favor of institutions formed on the model of the English and French. In these countries, therefore, publicity, oral pleading, and trial by jury in criminal cases, are demanded. The governments, however, still look with a certain degree of anxiety upon this growing power of the people, and seek, on that account, to make as few conces sions as possible. The old German lawyers, also, are too much accustomed to the hitherto existing forms, and too little acquainted with foreign institutions; so that the slowest possible alterations are proposed.
All new legislative undertakings of the states of southern Germany, which in other respects, are in conformity with the new ideas, contain for this reason mixtures of the old and new; the object of which is, to render the new institutions as harmless as possible.
By far the most advanced in legislation is Bavaria, where a criminal code, framed in 1813, by the celebrated Prince Feuerbach, is still in force. This code, although framed with particular clearness, precision and comprehensiveness, did not give satisfac
tion. The lawgiver had reckoned too much on the apprehension to be excited by severe punishment, and consequently threatened punishments, which were out of proportion to the offence; at the same time, the discretion of the judge was too much limited, since whatever grounds of alleviation might present themselves, the judge could not depart in the slightest respect from the punishment fixed by the code. In criminal prosecutions, secret and written procedure prevailed, and the accused, when he refused to answer, was punished by blows. So early as in 1822 and in 1827, new projects were laid before the Chambers, but were not discussed. In 1831 new projects were communicated to the Chambers. The project of the code of punishments is much simpler and milder than the code. The punishment of death occurs less frequently; the punishment of beating (prügel) is abolished. The procedure is particularly important. Public and oral proceedings are more prevalent, so that when the accusation is established (i. e. in English phrase, when a true bill is found), the accused and all the witnesses are heard in the presence of all the judges, and the sentence is pronounced. To imitate trial by jury in some measure, the plan is, that five judges, members of the criminal court, should decide, as judges of the fact, whether the accused has perpetrated it, and if the answer be in the affirmative, that four other judges should fix the punishment.
In Wirtemberg there is no new code as yet, but they follow the so-called common law, that is, a mixture of Roman, Canon and German law. In the year 1830, the plan of a criminal-procedure ordinance was laid before the states, in which all the old secret written procedure is to be found; only, to give the people some semblance of simplicity, a public final proceeding is introduced, in which an abstract of all the written proceedings is laid before the judges, and the defendant publicly produces his defence. Far more important is the project of a criminal code announced by the ministry in Wirtemberg during the present year. In many instances, it is framed after the Bavarian Code of 1813, but is much simpler and milder, and in particular, many regulations which belong rather to a compendium than a code, are left out.
In Baden, since 1809, the French Code Civil, with some modifications, has been in force.1 The other French codes, however have not been adopted; but in criminal law and civil procedure, the so-called common law, and particular laws, which do not harmonize very well together, have been in force, so that the law has
1 i. e. under a different name. Edit.
been involved in greater confusion. During the session of 1831, a code of civil procedure was proposed, and introduced in 1832. It sanctions the principle of publicity. A criminal code and a code of criminal procedure are preparing; both projects must be laid before the chambers at their next meeting. The law-commission charged with it, propose the introduction of publicity, oral pleading and jury trial. The Baden session of 1831, however, had exercised a powerful influence on the developement of legislation. The concord amongst the deputies gave them a degree of strength which enabled them to carry many important laws; for instance, a law relating to the press, by which the censorship was as good as repealed, and the freedom of the press legally established; a municipal ordinance, by which the freedom of the towns and villages was recognised; a law abolishing the punishment of corporal chastisement; a libel law, and a law as to the abolition of corvees. At the same time a law was prepared for the abolition of tithes. It was found that all provisions for buying them up had hitherto been ineffective, because the sum was too high for the payers, and it was therefore proposed that, all citizens being interested in their abolition, a third part of the compensation-money should be paid by the state.
In the Grand Duchy of Hesse, great legislative preparations have been made, but nothing is yet completed. In the Electorate of Hesse, the States have been assembled for more than a year and many important projects taken into consideration by them; but the government is somewhat wanting in good will, so that no law has yet been passed.
The legislative activity bears a different character in States which have no constitutions, and where, consequently, legislation emanates purely from the government. In all these countries, the striving after institutions which are more connected with political freedom is less perceptible. The institutions of publicity and trial by jury are less known to the people; and in a happy confidence in the government, less care is taken to prevent it from abusing its power. For this reason, legislation advances slowly, and busies itself principally with the tardy improvement of existing institutions and the abolition of the most violent abuses. To this class belongs the legislation of Austria and Prussia. Complete codes already exist in both countries. In Austria, particularly, a civil code is in force, which was published in 1811, and is the fruit of many years labor. It is distinguished by simplicity and clearness; and by keeping clear of many legal notions of Roman origin, has attained to a far greater degree of reasonableness than